Petitioner challenged the settlement of sand Ghats to Respondent No.5, claiming offer was ignored and auction was violated. Court dismissed petition, noting the bidder’s complete offer was received five minutes prior to the petitioner’s incomplete application.
Petition dismissed; settlement with Respondent No.5 upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1136 of 2013
====================================================== Harendra Kumar Singh, Son of Late Ram Pravesh Singh, Resident of Village Gere, P.S.-Muffasil, District Gaya .... .... Petitioner Versus 1. The State Of Bihar 2. The Principal Secretary, Department of Mines and Geology, Bihar, Patna. 3. The District Magistrate, Gaya. 4. The Assistant Director, Mines & Geology, Gaya. 5. M/s Rohit Construction Managing Partner, Sunil Kumar Singh, village Belauti, Post Baiju Bigha, P.S. Gurua, District Gaya .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Sanjeev Kumar, Advocate For the Respondents : Mr. V.M.K. Sinha, Advocate For Respondent No.5 : Mr. Siya Ram Shahi, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE JAYANANDAN SINGH ORAL ORDER
4 1-03-2013 Petitioner has filed this writ application for quashing the order dated 31.12.2012, as contained in Letter No.1160 vide Annexure-6 with the writ application, by which sand Ghats of the district of Gaya were settled with respondent no.5 for the period 01.01.2013 to 31.03.2013 on a consideration of Rs.3,43,91,000/-. The challenge of petitioner to this letter is on the ground that, in the process of settlement, offer of petitioner was not considered and auction was not held which was violative of Rule 11(A) of the Bihar Mineral and Miners Rules 1972 (hereinafter referred to as “the Rules”).
Case of the petitioner is that, in terms of the said Rules, read with Government Resolution No.2438 dated 31.12.2009, sand
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Ghats have to be settled for three years at a time by holding auction. After issue of the said Resolution, auctions were actually held and sand Ghats were actually settled for three years ending on 31.12.2012. Hence, in terms of the Rules and the Resolution, a fresh settlement was required to be made for another three years with effect from 01.01.2013 by again holding auction. Petitioner has produced one auction notice of the District Mining Office, Jamui dated 19.11.2012, as Annexure-1, to show that for shorter period also, auction was the mode for settlement of sand Ghats. Petitioner has brought on record letter no.3158 dated 30.11.2012 issued from the Mines and Geology Department and addressed to all the Collectors of the State, as Annexure-2, by which the Collectors were informed that as the new sand policy was under preparation, a Group of Ministers under the Chairmanship of the Deputy Chief Minister has decided that sand Ghats should be settled for three months only with the existing settlees on payment of 20% more over and above the settlement amount of 2012. Petitioner has stated that the present settlee of sand Ghats of the district of Gaya refused to take settlement for the period of next three months in terms of the said letter (Annexure-2). Accordingly, the District Magistrate issued a general notice on 26.12.2012, vide Annexure-3, inviting offers for settlement of
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sand Ghats of the district for the said three months on payment of 20% over and above the settlement amount of the calendar year 2012. The offers had to be submitted latest by 12 noon of 30th December 2012. Petitioner came to know about the said notice and submitted an application before the deadline, vide Annexure-4, with an offer to take settlement of sand Ghats on payment of 20% extra. It is the case of petitioner that after expiry of the deadline, respondent no.5 submitted its application on 31.12.2012, vide Annexure-5. However, the official respondents did not consider the offer of petitioner and issued the impugned letter, as contained in Annexure-6, settling the sand Ghats of the district with respondent no.5. It is contended that acceptance of the application of respondent no.5 filed on 31.12.20121 and without considering the application of petitioner was illegal and violative of the Principles of Natural Justice. Petitioner thereafter filed another application on 02.01.2013, vide Annexure-7, objecting to the issue of settlement letter and claiming that if he would have been allowed to participate in the offer he would have benefitted the public revenue much more. It is pleaded that petitioner is ready to pay 10% more amount for settlement than respondent no.5 even today.
Learned counsel for the petitioner submitted that if the
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existing settlee was not ready to take settlement for another three months on the amount of settlement of the previous calendar year plus 20%, the respondents were under legal obligation to hold open auction and settle the sand Ghats with the highest bidder in terms of the said Rule 11 (A) of the Rules read with the said Government Resolution of 2009. He submitted that once the application of petitioner had been received by the respondents within time, they acted illegally and arbitrarily by ignoring the same and settling the sand Ghats with respondent no.5 whose application had been received beyond time.
In reply, a counter affidavit has been filed by respondent no.4 i.e. Assistant Director of Mines and Geology, as well as by respondent no.5 also, who appeared in the case through its learned counsel on 28.01.2013. Respondent no.4 in his counter affidavit has contended that the arrangement made by the said letter of the Department dated 30.11.2012, as contained in Annexure-2, is only an interim arrangement as a new policy for settlement of sand Ghats is under preparation in terms of the orders of the Hon’ble Supreme Court. It is accepted in the counter affidavit that, in terms of the said letter, existing lessee was offered renewal of his settlement for three months more which he refused, vide Annexures R/1 and R/2. It is contended that after his refusal
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respondents had no option than to put the sand Ghats on auction. Hence, the general notice, as contained in Annexure-3 with the writ application, was issued. In response to the notice, petitioner submitted his application on 30.12.2012 at 11.50 A.M., vide Annexure-4, which was undated, without full address and without supporting documents. It is contended that on the very same day, respondent no.5 also filed a sealed envelope containing its application and all the relevant documents and a draft of Rs.1,00,00,000/- which was received at 11.45 A.M. vide Annexure-R/3. It is contended that 30th December being a Sunday, both applications were placed before the Collector on the next day and, therefore, on the application of respondent no.5, the date of 31.12.2012 was endorsed. It is contended that application of the petitioner was also placed before the Collector on 31.12.2012 which will be evident from Annexure-R/4. Hence it is pleaded that petitioner has suppressed the fact of his application being placed before the Collector on 31st and respondent no.5 having also filed his application on 30th itself within time.
Respondent no.5 in its counter affidavit has raised an objection that petitioner has not challenged the said letter of the Department dated 30.11.2012 as contained in Annexure-2 with the writ application. It is contended that settlement of the sand Ghats
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with respondent no.5 for three months is in pursuance of the said decision as contained in the said letter and, therefore, the same cannot be held to be bad. In its counter affidavit, respondent no.5 has repeated the same facts with regard to issue of notice by the Collector, on failure of existing settlee in taking settlement for remaining three months, and submission of its application with all the requisite particulars and within time. It is alleged that petitioner is a member of Zila Parishad, Gaya and the moment he came to know that this respondent had filed his offer at 11.45 A.M. he hurriedly filed a handwritten, undated and incomplete application five minutes later. It is contended that petitioner, being a member of the Zila Parishad, was not entitled to participate in the offer. It is pleaded that respondent no.5 has paid all the consideration amount of settlement and has cleared its income tax liabilities also in respect of the said settlement. So far as settlement of sand Ghats made in the district of Jamui is concerned, it is stated that the decision of the Government contained in the said letter Annexure-2 was taken later on and hence, the settlement of sand Ghats of Jamui district by auction even for a short period cannot be treated as an example for challenging the validity of any action of the respondents taken subsequent to the said decision contained in the said Government
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letter dated 30.11.2012.
Petitioner has filed reply to the counter affidavit of the respondents. Besides reiterating the stand in the writ application, it is stated that even after the said decision in Annexure-2, the respondents have directed for settlement of sand Ghats of East Champaran District for the calendar year 2013 through limited competition vide letter dated 21.01.2013, annexed as Annexure-8 with the reply.
Learned counsels for respondent no.4 and respondent no.5 advanced their arguments in support of their cases and on the lines of the stand in their respective counter affidavit.
After considering the cases of the parties and documents on record, it must be noticed at the outset that in this case petitioner has neither challenged the said decision of the Group of Ministers communicated to all the Collectors through the said letter dated 30.11.2012 vide Annexure-2, and, in spite of this objection being raised by the respondents in their counter affidavit, he has not filed any application for amendment in the prayer, nor has he challenged the general notice issued by the Collector, vide Annexure-3. Now, from a bare reading of the said general notice it is apparent that offers were invited for settlement of sand Ghats of the district of Gaya for three months on the basis of settlement
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amount of the calendar 2012 plus 20% including tax. The offers were to be received till 12 noon on 30.12.2012. It is clear that the offer of respondent no.5 was received on that day at 11.45 A.M. whereas the application of petitioner was received five minutes later at 11.50 A.M. This is evident from the statement prepared by respondent no.4 at 12.05 P.M. on that very day, annexed by the petitioner himself along with Annexure-6 and available with the writ application at page 18. This is also clear that respondent no.5 had submitted his application with large number of documents, as mentioned in the application itself, annexed as Annexure-5 with the writ application itself, and in its application total settlement amount on which respondent was agreeable to take settlement was mentioned and also that an advance of Rs.1,00,00,000/- by way of bank draft was being submitted. It was also stated in the application that after receipt of the orders, rest amount would be deposited within one week. As against this, the application of the petitioner, vide Annexure-4, is clearly a handwritten, undated application in which it is merely stated that he was submitting his offer to accept the settlement with increase of 20% in the settlement amount. No document, whatsoever, was accompanied with the said handwritten application and apparently, it appears to have been submitted hurriedly five minutes after the application of
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respondent no.5 was received. It has not been denied by the petitioner that he is a member of Zila Parishad.
General notice published by the Collector does not talk about any auction or settlement of sand Ghat with the highest bidder. It only invites offers for acceptance of settlement for three months on payment of 20% extra. Since this notice is not under challenge and petitioner himself claims a right under this notice, true import and effect of notice has only to be taken into account by the Court for deciding validity of claim of the petitioner.
This Court finds that, even if the said application of the petitioner is treated to be an offer, applications of both the parties were for settlement of sand Ghats on payment of 20% extra. No party had offered any higher amount. Petitioner in his said handwritten application has not mentioned that he was ready to participate in an auction, if held, and was ready to bid for higher amount for the said three months period also. In the circumstances, this Court is of the opinion that the respondents have rightly accepted the application of respondent no.5, since it was received five minutes earlier to the application of petitioner and within time and all the necessary documents including a bank draft of Rs.1,00,00,000/- were enclosed with the same, which showed seriousness of its offer. In terms of the notice, in the
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opinion of this Court, the first offer received by respondents earlier in time could be validly accepted by the respondents, which they did, as both the offer were for the same amount. Moreover, the handwritten application of the petitioner, Annexure-4, also does not inspire confidence of this Court to come to a conclusion that petitioner had made an offer in right earnest and with all seriousness to establish any right to be considered in the process. Since the general notice issued by the Collector is not under challenge in this writ application, applicability of Rule 11 (A) of the Rules read with Resolution of 2009 is not required to be examined in the case. However, it is obvious that as the settlement of sand Ghats with respondent no.5 is coming to an end on 31st of March, 2013, respondent are under legal obligation to take steps for fresh settlement of the sand Ghats in accordance with law well in time.
This writ application is dismissed.
(JAYANANDAN SINGH , J)
B.T/-
3 issues framed by the court
Whether acceptance of an offer received five minutes earlier and accompanied by documentary evidence, in violation of strict time limits, validates the settlement notice.
Whether the petitioner’s hurried, undated application without documents could be treated as a valid competing offer for settlement.
Whether the bidder’s status as a member of the Zila Parishad disqualifies him from participating in the settlement offer.
1 provisions across 1 enactments
Harendra Kumar Singh
The State Of Bihar
The Principal Secretary, Department of Mines and Geology, Bihar, Patna
The District Magistrate, Gaya
The Assistant Director, Mines & Geology, Gaya
M/s Rohit Construction
Jayanandan Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
